The Uninvited Ombudsman Report, No. 67 - Federal Pocketknife Ban?

Taken from the most recent "Page Nine", Alan Korwin's "The Uninvited Ombudsman Report"

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10- Government Banning Pocketknives

The lamestream media told you:

Nothing.

Web sources however told you the federal government is set to confiscate or criminalize possession of most pocket knives in the country, mainly focused on "assisted opening" knives. Great confusion exists between these one-hand-opening knives, reportedly 80% of the current knife market, regular pocket knives, true switchblades and the effects of both state and federal law on the subject. Page Nine readers who have removed their blinders will of course immediately recognize that the Customs and Border Protection agency cannot write or rewrite federal law, even if they'd like to. Attorney David Wong, author of Knife Laws of the 50 States clarifies the mess below.

The Uninvited Ombudsman notes however that:

Hi Alan. I believe the knives in question are assisted-openers, not automatics. The Customs and Border Protection (CBP) ruling in question apparently stems from a reversal of a prior CBP "admissibility determination" via a so-called Headquarters Ruling Letter, for a specific type of assisted-opening knives.
The federal switchblade act is found at 15 U.S.C. §1241 et. seq.; here is the index:

1241. Definitions.
1242. Introduction, manufacture for introduction, transportation or distribution in interstate commerce; penalty.
1243. Manufacture, sale, or possession within specific jurisdictions; penalty.
1244. Exceptions.
1245. Ballistic knives.
(a) Prohibition and penalties for possession, manufacture, sale, or importation.
(b) Prohibition and penalties for possession or use during commission of Federal crime of violence.
(c) Exceptions.
(d) "Ballistic knife" defined.

This takes you to the statute itself, pretty easy to read:
http://caselaw.lp.findlaw.com/casecode/uscodes/15/chapters/29/toc.html

Unfortunately, some of the stories I've seen about this issue contain a lot of hype and speculation. For example, "this CBP ruling will affect 'almost every pocketknife' in America" (or words to that effect). Well, no. First, CBP cannot change federal law, and federal courts are quite jealous of their power to interpret federal law.

Second, many states allow possession of automatic knives (true switchblades). Thus, even if a specific knife is ruled to be a switchblade, such knife would be legal in those states. Those states that prohibit switchblades typically define via state statute (whose definitions are often, but not always, patterned after the federal wording) what a "switchblade" is. State courts thus would look (and have looked) to their own statutory definitions and case law to determine legality of a particular knife. Many of those states thus have case law on what constitutes a statutory switchblade in those states. The CBP ruling won't (and cannot) change that.

For those remaining states that prohibit switchblades but have not expressly defined the term either directly via statute or indirectly via case law, state courts would typically look (and have looked) at the federal definition, as well as other states' statutory or case law, to determine whether a particular knife is a switchblade, or not. Generally, a state court isn't going to look at an administrative ruling from a federal agency to determine what constitutes a switchblade under that state's law.

For knife-friendly states, I wouldn't expect an outlandish ruling, although that of course is always a possibility. The knife-unfriendly states have all already prohibited switchblades and defined via statute or case law what constitutes same.

Finally, federal courts may look at the agency's ruling in a particular case, but because the ruling is interpreting a federal statute and not an administrative rule, properly enacted under the Administrative Procedures Act of that agency, such interpretation isn't entitled to, and is unlikely to be afforded, much deference by the court.

I am unaware if the importer whose admissibility determination was denied is seeking further review or appeal of the CBP ruling. That generally comes down to a business (i.e., money) decision. The CBP ruling, if it stands, will indeed have a chilling effect on imports of assisted openers, and as such knife owners should be concerned.

However, some of the hyperbole needs to be toned down to a more level-headed understanding of the impact of the CBP ruling. Could CBP try to extend their ruling to encompass non-assisted opening, i.e., "ordinary" pocket folding knives? Sure, although any such attempt is unlikely to progress very far, even with the anti-tool, anti-self-defense crowd now in charge in Washington.
The idea that the federal switchblade act bans all folding pocket knives is ludicrous on its face, and without legal or historical support. And, I suspect, without much political support either. Hope you are well, and have a great day!

Stay sharp, stay safe, David.

P.S. Knife Laws of the 50 States is a tremendous resource, look at it here:
http://www.gunlaws.com/books10knives.htm

P.P.S. For what it's worth, the proposal is 63 pages long and reads like this: Pursuant to 19 U.S.C. § 1625(c)(1), CBP intends to revoke HQ 116315, HQ W116730, HQ H016666, and HQ H032255, and any other ruling not specifically identified that is contrary to the determination set forth in this notice to reflect the proper admissibility determination pursuant to the analysis set forth in proposed Headquarters Ruling Letters (HQs) H043122 (Attachment E)...

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4- Join "The Race"
5- Muslim Jihad Deniers
6- Abu Hussein Praised
7- Muslims Overrun Sweden
8- Tzars Gaining Ground
9- Stop The Tzars
10- Government Banning Pocketknives

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Alan Korwin
The Uninvited Ombudsman